V.K.SREEKUMARI KUNJAMMA v. NONE

W.P.(C)19874/20052and P4 are demand notices by the 3rd respondent. Though the petitioner preferred an appeal on the question of clubbing of two buildings for the purpose of assessment, the same was decided against the petitioner confirming the order of the assessing officer. The revisional authority has also confirmed the same. Hence this writ petition. 2. Ext.P5 order is the final order passed by the authority rejected the contention of the petitioner. The only reason for treating the two buildings together as per Ext.P6 is that both the buildings have got a common septic tank with one soakpit and no other distinct features were shown for treating the two buildings as one unit. Petitioner contends that this approach by the authority is totally against the accepted principle as to how the two buildings has to be treated whether as a single unit or adifferent unit. According to him, the mere fact that the two buildings are owned by the same person by itself is no reason to hold that the area occupied by two buildings could be clubbed together for the purpose of assessment and treat the same as asingle unit.

The mere fact that two buildings are situated adjacent with the common wall in between also does not make W.P.(C)19874/20053any difference so long as such constructions are permissible under the Kerala Building Rules. If, two neighboring owners agreed for construction of a building that there could be acommon wall in between and if there is no such prohibition under the Kerala Building Rules for the purpose of construction of such type of buildings as agreed to by them, then there is no reason to hold that the two buildings are to be treated as one building, especially, since the Apartment Ownership Act has already come into force in the State of Kerala, different apartments one above the other would still be owned and possessed by different persons. Therefore, the criteria to be adopted in the matter of treating two buildings as one unit is to see whether both the buildings could separately be enjoyed; whether there were different electricity connection; whether one building could be enjoyed without entering through the other building, in other words whether two buildings could independently exist in the matter of enjoyment of same is arelevant factor.

As per the decision of this Court in Lalitha v.State of Kerala [1994(2) KLT 66], the learned Judge held after considering the relevant portion of Kerala Building Tax Act that there is no provision in the Act for clubbing together various W.P.(C)19874/20054buildings constructed by the same owner which are otherwise separate either in the same financial year or otherwise. Twoseparate units may constitute one building, if they are built for the purpose of one or the other, and are functionally integrated. For example, a house with a garage, out-house for servants, latrines, cow-shed and so on forms an integral unit and has to be assessed as such. A hotel complex which may consist of numerous buildings like, cottages, kitchen complex, shopping arcade and so on or a factory complex with its appendages may constitute one unit for the purpose of assessment. But when there is no such inherent connection between the buildings, when they do not exist for each other and are otherwise separate, there is no provision anywhere in the Act which requires such separate entities clubbed together into one or which deems them to be one building.

Therefore, it was held that merely because two buildings are owned by the same person there is no criterion to treat the two buildings as one unit. Thequestion as to whether the two buildings in question could be clubbed together therefore depends upon the facts and circumstances of each case. In the present case, the only distinction drawn by the revisional authority is that there is no W.P.(C)19874/20055separate septic tank. No other distinct feature has been shown. Learned Government Pleader however pointed out that there is only one approved building plan for the two buildings. But this argument does not appeal to me. A huge building with several apartments, the builder gives only one plan for approval consisting of all the independent flats and they are constructed based on the agreement between the intending buyer and the builder. It has since been held by the Division Bench of this Court that if the construction is made by the builder using the funds with separate funds provided by the intending buyer then such flats are to be treated as separate units.